Monday, February 27, 2012

Critical Mass Revisited

By Mike Dorf

My latest Verdict column previews the issues in Fisher v. University of Texas, the affirmative action case the Supreme Court added to its docket last week. After tracing the historical interaction of the Court's doctrine and the responses by the University of Texas, I conclude by explaining how both liberals and conservatives each only pay lip service to colorblindness. Here I want to delve a little deeper into one aspect of the case that could prove decisive before connecting it up with a theme I explore in the column.

The question is what to make of the "critical mass" argument at work in Fisher. Recall that in Grutter v. Bollinger, the majority opinion credited the University of Michigan Law School's interest in obtaining not just token representation of underrepresented minorities but a "critical mass," i.e., enough such students that no one feels isolated or like he or she is a spokesperson for the group. In my blog post last week, I noted that the dissenters in Grutter didn't necessarily reject the critical mass concept per se, but scrutinized the record to cast doubt on the claim that the University of Michigan Law School was actually pursuing this goal. I quoted the following language from the late Chief Justice Rehnquist's dissent:

From 1995 through 2000, the Law School admitted between 1,130 and 1,310 students. Of those, between 13 and 19 were Native American, between 91 and 108 were African-Americans, and between 47 and 56 were Hispanic. If the Law School is admitting between 91 and 108 African-Americans in order to achieve “critical mass,” thereby preventing African-American students from feeling “isolated or like spokespersons for their race,” one would think that a number of the same order of magnitude would be necessary to accomplish the same purpose for Hispanics and Native Americans.

I said in last week's blog post that Rehnquist "had a point," and indeed he does, but I have been thinking that perhaps the point is not all that devastating. The inference that Rehnquist draws from these numbers is that Michigan Law School didn't really care about critical mass at all, but was instead using the critical mass concept as a cover for its policy of racial balancing--i.e., its effort to make the proportion of members of various groups in the admitted class roughly match their proportion in the general population.

On the face of things, it's now not obvious to me that the numbers establish that MLS was aiming at racial balancing for its own sake rather than critical mass. Here's another explanation: The law school sought a critical mass of all groups, but this was easiest to achieve for African American students and hardest to achieve for Native American students, because there were so many more African American applicants. In this view, MLS would have admitted many more Native American students, but with a very small pool, there simply were not enough qualified Native American applicants to admit a critical mass of them. Thus, MLS had to balance its goal of admitting a critical mass of each group against the limits of qualified applicants in the pool.

Is that the real explanation? I don't know. Clearly educational institutions don't value critical mass over everything else. Moreover, I suspect that critical mass could vary based on the group. Let me explain with a thought experiment.

Suppose that the University of Michigan enrolls about a dozen Canadian undergraduates each year. I tried to find the actual number of Canadian students attending UM but without success. The UM does have a webpage for Canadian students, suggesting it's more than a handful, which would make sense given the proximity of Michigan to Ontario. In any event, the actual numbers are not important. Let's suppose that UM has some Canadian students but fewer than it would regard as a critical mass of African American students. Let's also suppose that UM could increase the number of its Canadian students through a combination of more aggressive recruiting in Canada and affirmative action for Canadians. Does UM's failure to take such steps undermine its claim that it seeks a critical mass of African Americans?

I don't think so. Why not? Because there is no (or very little) tendency of Americans to stereotype or isolate Canadians or to make them feel like spokespersons for Canada. In other words, critical mass is less important for Canadians than for African Americans.

If that's right, then it's a double-edged sword. On the one hand, we now have another explanation for how the critical mass idea could be valid, even though admissions officers don't apply it uniformly across groups. On the other hand, it now looks like critical mass is tied in some non-accidental way to history of discrimination and stereotyping. So critical mass could be seen as serving a kind of remedial purpose. That's potentially a problem because the SCOTUS precedents define the acceptable scope of remedial affirmative action quite narrowly. To be sure, I disagree with the relevant precedents, and would entertain a broader conception of remedial purpose, but that's an argument for another day.

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